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On The Front Lines

Victory: Supreme Court Reins in the Government's Power to Punish Speech

WASHINGTON, D.C. — The U.S. Supreme Court has provided greater protections on speech by ruling that when the government seeks to punish what it considers to be threatening speech, it must prove a defendant had some understanding of his statements’ character and acted recklessly by disregarding the risk his words would be viewed as threatening violence.

The Supreme Court’s ruling in Counterman v. Colorado follows part of the argument put forth in the amicus brief filed by The Rutherford Institute and the Cato Institute that the government should have to prove statements are both objectively understood and subjectively intended to threaten an illegal act in order to convict someone of making threats. In its ruling, the Court sought to create more breathing room for protected speech by lowering the risk that law-abiding citizens would self-censor out of fear of punishment when the government only had to prove how a so-called “reasonable person” might interpret their statements regardless of the speaker’s actual motive.

“The government must not be given the power to criminalize speech it deems distasteful or annoying,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Nowhere in the First Amendment does it permit the government to limit speech in order to avoid causing offense or hurting someone’s feelings, protect government officials from criticism, discourage bullying, penalize hateful ideas, combat prejudice and intolerance, and the like.”

Under Colorado’s stalking law, a person can be charged with stalking for repeatedly contacting, surveilling or communicating with an individual in such a way that a reasonable person would feel serious emotional distress. In June 2020, the Colorado Supreme Court established new criteria for distinguishing between threatening and protected speech in a social media age. The ruling stated that when an alleged threat is communicated online, courts should consider both the words and the context, factoring in the statement’s role in a broader exchange including any surrounding events, the medium, any anonymity and the private or public nature of the statement, the relationship between the correspondents, and the recipient’s reaction to the statement. However, the court declined to consider whether a speaker must have a subjective intent to actually threaten the recipient, because the statute in that case required the government to prove such an intent anyway.

In its ruling in Counterman v. Colorado, the U.S. Supreme Court addressed the subjective standard which the First Amendment requires the government to prove in such prosecutions, holding that the government must show that a speaker acted in reckless disregard of the risk his statements would be viewed as threatening violence. While this does not require the government prove a speaker had a specific intent or desire to make a threat, it does impose a greater burden on the government and provides additional protections for citizens. In weighing in on the case, attorneys for The Rutherford Institute and Cato warned that while protecting people from stalking is certainly a valid concern and may be warranted in this particular case, such broad-reaching laws could empower the government to misinterpret any speaker’s intent and meaning in order to criminalize legitimate political speech that is critical of government officials and representatives.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

Case History

October 21, 2022 • Rutherford Institute Warns Against Giving the Government a Green Light to Chill Political Speech on Social Media 

January 25, 2023 • Supreme Court Agrees to Hear Case That Could Give the Government a Green Light to Chill Political Speech on Social Media 


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